<PAGE>
As filed with the Securities and Exchange Commission on September 28, 1999
Registration No. 333-
================================================================================
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------
NUEVO ENERGY COMPANY
(Exact name of registrant as
specified in its charter)
DELAWARE 76-0304436
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1021 MAIN, SUITE 2100, HOUSTON, TEXAS 77002
(Address of Principal Executive Offices) (Zip Code)
NUEVO ENERGY COMPANY
1999 STOCK INCENTIVE PLAN
(Full title of the plan)
---------------------
Robert M. King
1021 MAIN, SUITE 2100, HOUSTON, TEXAS 77002
(Name and address of agent for service)
(713) 652-0706
(Telephone number, including area code, of agent for service)
---------------------
COPY TO:
GEORGE G. YOUNG III
HAYNES AND BOONE, L.L.P.
1000 LOUISIANA, SUITE 4300
HOUSTON, TEXAS 77002
TELEPHONE: (713) 547-2081
TELECOPY: (713) 547-2600
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
TITLE OF AMOUNT PROPOSED MAXI- PROPOSED MAXI- AMOUNT OF
SECURITIES TO BE TO BE MUM OFFERING PRICE MUM AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per
share (1) (2) 1,000,000 $17.09(3) $17,090,000 $4,751.02
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Including preferred stock purchase rights issued under the Company's
Shareholder Rights Plan, dated March 5, 1997.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Stock Incentive Plan
described herein.
(3) Estimated solely for purposes of calculating the registration fee.
Pursuant to Rule 457(c) and 457(h), the offering price and registration
fee is computed on the basis of the average of the high and low prices
reported on the New York Stock Exchange on September 22, 1999.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*Information specified in Part I of Form S-8 (Items 1 and 2) will be sent
or given to our employees, officers and directors participating in the Nuevo
Energy Company 1999 Stock Incentive Plan as specified by Rule 428(b)(1) under
the Securities Act of 1933, as amended (the "1933 Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by us with the Securities and Exchange
Commission pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), are incorporated herein by reference:
. Annual Report on Form 10-K for the fiscal year ended December 31, 1998.
. Quarterly Reports on Form 10-Q for the periods ended March 31, 1999 and
June 30, 1999.
. Current Reports on From 8-K filed February 4, 1999, March 10, 1999, July
23, 1999, and August 2, 1999.
. The description of common stock contained in the our Registration
Statement on Form 8-A, filed with the Commission on May 15, 1990,
including any future amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
under the plan have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
-2-
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware,
pursuant to which the Company is incorporated, provides generally and in
pertinent part that a Delaware corporation may indemnify its directors,
officers, employees and agents (or persons serving at the request of the Company
as a director, officer, employee or agent of another entity) against expenses,
judgments, fines, and settlements actually and reasonably incurred by them in
connection with any civil, criminal, administrative, or investigative suit or
action except actions by or in the right of the corporation if, in connection
with the matters in issue, they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and in connection with any criminal suit or proceeding, if in
connection with the matters in issue, they had no reasonable cause to believe
their conduct was unlawful. Section 145 further provides that in connection
with the defense or settlement of any action by or in the right of the
corporation, a Delaware corporation may indemnify its directors, officers,
employees and agents (or persons serving at the request of the Company as a
director, officer, employee or agent of another entity) against expenses
actually and reasonably incurred by them if, in connection with the matters in
issue, they acted in good faith and in a manner they reasonably believed to be
in or not opposed to the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue, or matter as to
which such person has been adjudged liable to the corporation unless the
Delaware Court of Chancery or other court in which such action or suit is
brought approves such indemnification. Section 145 further permits a Delaware
corporation to grant its directors and officers additional rights of
indemnification through bylaw provisions and otherwise, and or purchase
indemnity insurance on behalf of its directors and officers. Article Nine of
the Certificate of Incorporation of the Company, as amended, and Article VII of
the Bylaws of the Company, as amended, provide, in general, that the Company may
indemnify its directors, officers, employees and agents (or persons serving at
the request of the Company as a director, officer, employee or agent of another
entity) to the full extent of Delaware law.
The Company has purchased directors and officers liability insurance policy
which insures, among other things, (i) the officers and directors of the Company
from any claim arising out of an alleged wrongful act by such persons while
acting as directors and officers of the Company and (ii) the Company to the
extent that the Company has indemnified the directors and officers for such
loss.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
------- ----------- --------------- --------
<S> <C> <C> <C>
4.1 Specimen Stock Certificate Exhibit 4.1 to the Registrant's
Registration Statement on Form S-4
(Registration No. 33-33873)
</TABLE>
-3-
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
------- ----------- --------------- --------
<S> <C> <C> <C>
5.1 Opinion of Haynes and Boone, L.L.P. X
15 Letter re unaudited interim financial
information*
23.1 Consent of KPMG LLP X
23.2 Consent of Haynes and Boone, L.L.P. Included as
part of
Exhibit 5.1
24 Power of Attorney Signature
Page to this
Registration
Statement
99.1 1999 Stock Incentive Plan X
</TABLE>
* Not applicable
ITEM 9. UNDERTAKINGS.
(a) We hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
1933 Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
-4-
<PAGE>
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with the Commission
by us pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) We hereby undertake that, for purposes of determining any liability
under the 1933 Act, each filing of our annual report pursuant to Section
13(a) or Section 15(d) of the 1934 Act (and where applicable, each filing
of an employee benefits plan's annual report pursuant to Section 15(d) of
the 1934 Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to our directors, officers and controlling persons pursuant to
the provisions referred to in Item 6, or otherwise, we have been advised
that in the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by us of expenses incurred or paid by a
director, officer or controlling person in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, we
will, unless in the opinion of our counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by us is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on September 24, 1999.
NUEVO ENERGY COMPANY
(Registrant)
By: /s/ Douglas L. Foshee
-----------------------------------------
Douglas L. Foshee, Chairman of the Board,
and Chief Executive Officer
(principal executive officer)
-6-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Douglas L. Foshee and Robert M. King, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, and any other regulatory authority, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, thereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Douglas L. Foshee Chairman of the Board, President September 24, 1999
- ---------------------------- and Chief Executive Officer
Douglas L. Foshee (principal executive officer)
/s/ Robert M. King Senior Vice President and Chief Financial September 24, 1999
- ---------------------------- Officer (principal accounting and financial
Robert M. King officer)
/s/ Robert L. Gerry III Director September 24, 1999
- ----------------------------
Robert L. Gerry III
/s/ David Ross III Director September 24, 1999
- ----------------------------
David Ross III
/s/ Gary R. Petersen Director September 24, 1999
- ----------------------------
Gary R. Petersen
/s/ Thomas D. Barrow Director September 24, 1999
- ----------------------------
Thomas D. Barrow
/s Isaac Arnold, Jr. Director September 24, 1999
- ----------------------------
Isaac Arnold, Jr.
/s/ David H. Batchelder Director September 24, 1999
- ----------------------------
David H. Batchelder
/s/ Robert W. Shower Director September 24, 1999
- ----------------------------
Robert W. Shower
/s/ Charles M. Elson Director September 24, 1999
- ----------------------------
Charles M. Elson
</TABLE>
-7-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Nuevo Energy
Company has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Houston, State of
Texas on September 24, 1999.
NUEVO ENERGY COMPANY 1999 STOCK
INCENTIVE PLAN
By: Nuevo Energy Company Plan Administrator
By: /s/ Douglas L. Foshee
---------------------------------------------
Douglas L. Foshee, Chairman of the Board
President and Chief Executive Officer
-8-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
------- ----------- --------------- --------
<S> <C> <C> <C>
4.1 Specimen Stock Certificate Exhibit 4.1 to the Registrant's
Registration Statement on Form S-4
(Registration No. 33-33873)
5.1 Opinion of Haynes and Boone, L.L.P. X
15 Letter re unaudited interim financial
information*
23.1 Consent of KPMG L.L.P. X
23.2 Consent of Haynes and Boone, L.L.P. Included as part
of Exhibit 5.1
24 Power of Attorney Signature Page to
this Registration
Statement
99.1 1999 Stock Incentive Plan X
</TABLE>
* Not applicable
-9-
<PAGE>
EXHIBIT 5.1
HAYNES AND BOONE, LLP
September 27, 1999
Nuevo Energy Company
1021 Main, Suite 2100
Houston, Texas 77002
Gentlemen:
We have acted as counsel to Nuevo Energy Company, a Delaware corporation (the
"Company"), in connection with the preparation of the Registration Statement on
Form S-8 (the "Registration Statement") filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
registration of 1,000,000 shares of Common Stock, par value $0.01 per share (the
"Common Stock"), of the Company that may be issued pursuant to the terms of the
Company's 1999 Stock Incentive Plan (the "Plan").
In connection therewith, we have examined (i) the Certificate of Incorporation
and the Bylaws of the Company, each as amended; (ii) minutes and records of the
corporate proceedings of the Company with respect to the adoption of the Plan;
(iii) certificates of certain officers and directors of the Company; (iv) the
Plan; and (v) such other documents as we have deemed necessary for the
expression of the opinions contained herein.
In making the foregoing examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. Furthermore, we have assumed that prices paid
for shares of Common Stock will equal or exceed the par value per share of the
Common Stock. As to questions of fact material to this opinion, where such
facts have not been independently established, and as to the content and form of
the Certificate of Incorporation (as amended), Bylaws (as amended), minutes,
records, resolutions and other documents or writings of the Company, we have
relied, to the extent we deem reasonably appropriate, upon representations or
certificates of officers or directors of the Company and upon documents, records
and instruments furnished to us by the Company, without independent check or
verification of their accuracy.
Based upon the foregoing, and having due regard for such legal considerations as
we deem relevant, we are of the opinion that the 1,000,000 shares of Common
Stock covered by the Registration Statement, which may be issued from time to
time pursuant to the purchase of shares of Common Stock in accordance with the
terms of the Plan, have been duly authorized for issuance by the Company, and,
when so issued in accordance with the terms and conditions of the Plan, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement.
Very truly yours,
/s/ HAYNES AND BOONE, L.L.P.
HAYNES AND BOONE, L.L.P.
ATTORNEYS
1000 Louisiana Street Suite 4300 Houston, Texas 77002-5012
Telephone (713)547.2000 Fax (713)547.2600 http://www.hayboo.com
AUSTIN DALLAS FORT WORTH HOUSTON SAN ANTONIO WASHINGTON, D.C. MEXICO CITY
<PAGE>
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Nuevo Energy Company:
We consent to incorporation by reference in this registration statement on Form
S-8 of Nuevo Energy Company of our report dated March 25, 1999 relating to the
consolidated balance sheets of Nuevo Energy Company and subsidiaries as of
December 31, 1998, and 1997, and the related consolidated statements of
operations, changes in stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1998, which report appears in
the December 31, 1998, annual report on Form 10-K of Nuevo Energy Company.
Our report dated March 25, 1999, contains an explanatory paragraph that states
that Nuevo Energy Company has given retroactive effect to the change in
accounting for oil and gas properties from the full cost method to the
successful efforts method in 1998.
/s/ KPMG LLP
Houston, Texas
September 27, 1999
H-170950.1
<PAGE>
EXHIBIT 99.1
================================================================================
NUEVO ENERGY COMPANY
1999 STOCK INCENTIVE PLAN
March 30, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I. GENERAL......................................... 1
Section 1.1. Purpose......................................... 1
Section 1.2. Administration.................................. 1
Section 1.3. Eligibility for Participation................... 1
Section 1.4. Types of Awards Under Plan...................... 2
Section 1.5. Aggregate Limitation on Awards.................. 2
Section 1.6. Effective Date and Term of Plan................. 3
ARTICLE II. STOCK OPTIONS................................... 3
Section 2.1. Award of Stock Options.......................... 3
Section 2.2. Stock Option Agreements......................... 3
Section 2.3. Stock Option Price.............................. 3
Section 2.4. Term and Exercise............................... 3
Section 2.5. Manner of Payment............................... 3
Section 2.6. Issuance of Certificates........................ 3
Section 2.7. Death, Retirement and Termination of Employment
of Optionee.................................... 4
Section 2.8. Effect of Exercise.............................. 4
Section 2.9. No Reduction in Option Price.................... 4
ARTICLE III. INCENTIVE STOCK OPTIONS......................... 4
Section 3.1. Award of Incentive Stock Options................ 4
Section 3.2. Incentive Stock Option.......................... 4
Section 3.3. Incentive Stock Option Price.................... 4
Section 3.4. Term and Exercise............................... 4
Section 3.5. Maximum Amount of Incentive Stock Option Grant.. 5
Section 3.6. Death of Optionee............................... 5
Section 3.7. Retirement or Disability........................ 5
Section 3.8. Termination for Other Reasons................... 5
Section 3.9. Termination for Cause........................... 5
Section 3.10. Applicability of Stock Options Sections......... 5
Section 3.11. Code Requirements............................... 5
Section 3.12. No Reduction in Option Price.................... 5
ARTICLE IV. STOCK APPRECIATION RIGHTS....................... 6
Section 4.1. Award of Stock Appreciation Rights.............. 6
Section 4.2. SAR Agreements.................................. 6
Section 4.3. SAR Exercise Price.............................. 6
Section 4.4. Term and Exercise............................... 6
Section 4.5. Exercise of SAR................................. 6
ARTICLE V. BONUS STOCK AWARDS.............................. 6
Section 5.1. Award of Bonus Stock............................ 6
Section 5.2. Stock Bonus Agreements.......................... 6
Section 5.3. Transfer Restriction............................ 6
ARTICLE VI. RESTRICTED STOCK................................ 7
Section 6.1. Award of Restricted Stock....................... 7
Section 6.2. Restricted Stock Agreements..................... 7
Section 6.3. Stockholder Rights.............................. 7
Section 6.4. Certificates.................................... 7
Section 6.5. Performance-Based Awards........................ 7
Section 6.6. Termination of Employment....................... 7
ARTICLE VII. RESTRICTED STOCK UNITS.......................... 7
Section 7.1. Award of Restricted Stock Units................. 7
Section 7.2. Restricted Stock Unit Agreements................ 7
Section 7.3. Stockholder Rights.............................. 7
Section 7.4. Certificates.................................... 8
Section 7.5. Performance-Based Awards........................ 8
Section 7.6. Termination of Employment....................... 8
ARTICLE VIII. PERFORMANCE SHARE AWARDS........................ 8
Section 8.1. Awards Granted by Plan Administrator............ 8
Section 8.2. Amount of Award................................. 8
Section 8.3. Communication of Award.......................... 8
Section 8.4. Amount of Award Payable......................... 8
Section 8.5. Adjustments..................................... 8
Section 8.6. Payments of Awards.............................. 9
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C> <C>
Section 8.7. Termination of Employment....................... 9
Section 8.8. Transfer Restriction............................ 9
ARTICLE IX. PERFORMANCE UNITS............................... 9
Section 9.1. Awards Granted by Plan Administrator............ 9
Section 9.2. Amount of Award................................. 9
Section 9.3. Communication of Award.......................... 9
Section 9.4. Amount of Award Payable......................... 9
Section 9.5. Adjustments..................................... 9
Section 9.6. Payments of Awards.............................. 10
Section 9.7. Termination of Employment....................... 10
ARTICLE X. MISCELLANEOUS................................... 10
Section 10.1. General Restriction............................ 10
Section 10.2. Non-Assignability............................... 10
Section 10.3. Withholding Taxes............................... 10
Section 10.4. Right to Terminate Employment................... 10
Section 10.5. Non-Uniform Determinations...................... 10
Section 10.6. Rights as a Stockholder......................... 10
Section 10.7. Definitions..................................... 11
Section 10.8. Leaves of Absence............................... 12
Section 10.9. Newly Eligible Employees........................ 12
Section 10.10. Adjustments..................................... 12
Section 10.11. Changes in the Company's Capital Structure...... 12
Section 10.12. Amendment of the Plan........................... 13
Section 10.13. No Loss of Rights of Grantee of an Award........ 14
Section 10.14. Dividends and Dividend Equivalents.............. 14
Section 10.15. Form and Time of Elections...................... 14
Section 10.16. Performance Based Compensation.................. 14
Section 10.17. Deferral........................................ 14
Section 10.18. Vesting and Award Criteria of Performance
Shares........................................ 14
Section 10.19. No Waiver....................................... 14
</TABLE>
-ii-
<PAGE>
NUEVO ENERGY COMPANY
1999 Stock Incentive Plan
ARTICLE I. GENERAL
Section 1.1. Purpose. The purposes of this Stock Incentive Plan (the
"Plan") are to: (1) associate the interests of the management of Nuevo Energy
Company and its Subsidiaries and affiliates (collectively referred to as the
"Company") closely with the stockholders to generate an increased incentive to
contribute to the Company's future success and prosperity, thus enhancing the
value of the Company for the benefit of its stockholders; (2) provide management
with a proprietary ownership interest in the Company commensurate with Company
performance, as reflected in increased stockholder value; (3) maintain
competitive compensation levels thereby attracting and retaining highly
competent and talented directors, employees and consultants; and (4) provide an
incentive to management for continuous employment with the Company. Certain
capitalized terms are defined in Section 10.7.
Section 1.2. Administration.
(a) The Plan shall be administered by a duly constituted committee of the
Board of Directors consisting of at least two members of the Board of Directors,
all of whom shall be both a Non-Employee Director and an Outside Director unless
otherwise designated by the Board of Directors. Such administrating committee
shall be referred to herein as the "Plan Administrator." The Plan Administrator
may delegate to one or more executive officers of the Company the power to make
Awards to individuals eligible to participate in the Plan pursuant to Section
1.3 who are not subject to Section 16(a) or 16(b) of the Exchange Act, provided
the Plan Administrator shall fix the maximum amount of such Awards for the group
and the maximum for any one Participant.
(b) The Plan Administrator shall have the authority, in its sole discretion
and from time to time to:
(i) designate the directors, officers, key employees and
consultants of the Company and its Subsidiaries eligible to participate in
the Plan;
(ii) grant Awards provided in the Plan in such form and amount as
the Plan Administrator shall determine;
(iii) impose such limitations, restrictions and conditions, not
inconsistent with this Plan, upon any such Award as the Plan Administrator
shall deem appropriate; and
(iv) interpret the Plan and any agreement, instrument or other
document executed in connection with the Plan, adopt, amend and rescind
rules and regulations relating to the Plan, and make all other
determinations and take all other action necessary or advisable for the
implementation and administration of the Plan.
(c) Decisions and determinations of the Plan Administrator on all matters
relating to the Plan shall be in its sole discretion and shall be final,
conclusive and binding upon all persons, including the Company, any Participant,
any stockholder of the Company, any director, any employee and any consultant.
No member of any committee acting as Plan Administrator shall be liable for any
action taken or decision made relating to the Plan or any Award thereunder.
Section 1.3. Eligibility for Participation. Participants in the Plan
shall be selected by the Plan Administrator from the directors, executive
officers and other employees and individuals who act as consultants of the
Company and executive officers and employees and individuals who act as
consultants of any Subsidiary of the Company who have the capability of making a
substantial contribution to the success of the Company. In making this
selection and in determining the form and amount of Awards, the Plan
Administrator shall consider any factors deemed relevant, including the
individual's functions, responsibilities, value of services to the Company and
past and potential contributions to the Company's profitability and growth.
<PAGE>
Section 1.4. Types of Awards Under Plan. Awards under the Plan may
be in the form of one or more of the following:
(i) Stock Options, as described in Article II;
(ii) Incentive Stock Options, as described in Article III;
(iii) Stock Appreciation Rights, as described in Article IV;
(iv) Bonus Stock, as described in Article V;
(v) Restricted Stock, as described in Article VI;
(vi) Restricted Stock Units, as described in Article VII;
(vii) Performance Shares, as described in Article VIII; and/or
(viii) Performance Units, as described in Article IX.
Awards under the Plan shall be evidenced by an agreement between the Company and
the recipient of the Award ("Award Agreement"), in form and substance
satisfactory to the Plan Administrator, and not inconsistent with this Plan.
Award Agreements may provide such vesting schedules for Stock Options, Incentive
Stock Options, Bonus Stock, Stock Appreciation Rights, Restricted Stock,
Restricted Stock Units, Performance Shares and Performance Units, and such other
terms, conditions and provisions as are not inconsistent with the terms of this
Plan. Subject to the express provisions of the Plan, and within the limitations
of the Plan, the Plan Administrator may modify, extend or renew outstanding
Award Agreements, or accept the surrender of outstanding Awards and authorize
the granting of new Awards in substitution therefor. However, except as
provided in Sections 10.1(i), 10.1(ii), 10.1(iii) and 10.11(d)(iii) of this
Plan, no modification of an Award shall impair the rights of the holder thereof
without his or her consent.
Section 1.5. Aggregate Limitation on Awards.
(a) Shares of stock which may be issued under the Plan shall be authorized
and unissued or treasury shares of Common Stock of the Company ("Common Stock").
The maximum number of shares of Common Stock which may be issued pursuant to
Awards issued under the Plan shall be 1,000,000 shares, which may be increased
by the Board of Directors pursuant to Section 10.12.
(b) For purposes of calculating the maximum number of shares of Common
Stock which may be issued under the Plan at any time:
(i) all the shares issued (including the shares, if any, withheld for
tax withholding requirements) under the Plan shall be counted when issued
upon exercise of a Stock Option or Incentive Stock Option; and
(ii) only the shares issued (including the shares, if any, withheld
for tax withholding requirements) as a result of an exercise of a Stock
Appreciation Right shall be counted;
(iii) only the net shares issued (including the shares, if any,
withheld for tax withholding requirements) shall be counted when shares of
Common Stock are used as full or partial payment for shares issued upon
exercise of a Stock Option or Incentive Stock Option; and
(iv) only the net shares issued (including the shares, if any,
withheld for tax withholding requirements) as Bonus Stock, Restricted
Stock, Restricted Stock Units, Performance Shares or Performance Units
shall be counted (shares reacquired by the Company because of failure to
achieve a performance target or failure to become fully vested for any
other reason shall again be available for issuance under the Plan).
(c) Any shares of Common Stock subject to a Stock Option or Incentive Stock
Option, which for any reason is terminated unexercised or expires shall again be
available for issuance under the Plan, but shares subject to a Stock Option or
Incentive Stock Option which are not issued as a result of the exercise of a
tandem Stock Appreciation Right shall not again be available for issuance under
the Plan.
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Section 1.6. Effective Date and Term of Plan
(a) The Plan shall become effective on the date adopted by the Board of
Directors, subject to approval by the holders of the Company's Common Stock as
required by the rules of the NYSE.
(b) The Plan and all Awards made under the Plan shall remain in effect
until such Awards have been satisfied or terminated in accordance with the Plan
and the terms of such Awards.
ARTICLE II. STOCK OPTIONS
Section 2.1. Award of Stock Options. The Plan Administrator may from time
to time, and subject to the provisions of the Plan and such other terms and
conditions as the Plan Administrator may prescribe, grant to any person eligible
to participate in the Plan one or more options to purchase for cash or shares
the number of shares of Common Stock ("Stock Options") allotted by the Plan
Administrator. The date a Stock Option is granted shall mean the date selected
by the Plan Administrator as of which the Plan Administrator allots a specific
number of shares to a Participant pursuant to the Plan.
Section 2.2. Stock Option Agreements. The grant of a Stock Option shall be
evidenced by a written Award Agreement, executed by the Company and the holder
of a Stock Option (the "Optionee"), stating the number of shares of Common Stock
subject to the Stock Option evidenced thereby, and in such form as the Plan
Administrator may from time to time determine.
Section 2.3. Stock Option Price. The Option Price per share of Common Stock
deliverable upon the exercise of a Stock Option shall be 100% of the Fair Market
Value of a share of Common Stock on the date the Stock Option is granted, unless
the Plan Administrator determines a higher price.
Section 2.4. Term and Exercise. A Stock Option shall not be exercisable
prior to six months from the date of its grant, unless a shorter period is
provided by the Plan Administrator or by another Section of this Plan, and may
be subject to such vesting scheduling and term ("Option Term") as the Plan
Administrator may provide in an Award Agreement. No Stock Option shall be
exercisable after the expiration of its Option Term. Unless otherwise provided
by the Plan Administrator, the Option Term shall be 10 years.
Section 2.5. Manner of Payment. Each Award Agreement providing for Stock
Options shall set forth the procedure governing the exercise of the Stock Option
granted thereunder subject to the following:
(a) Subject to the following provisions of this Section 2.5, upon the
exercise in respect of any shares of Common Stock subject to the Stock
Option, the Optionee shall pay to the Company, in full, the Option Price
for such shares (except that, in the case of an exercise arrangement
approved by the Plan Administrator and described in Section 2.5(c)),
payment may be made as soon as practicable after the exercise.
(b) The Option Price shall be payable in cash or, if authorized by the
Plan Administrator, by tendering shares of Common Stock in a manner
acceptable to the Plan Administrator and valued at Fair Market Value as of
the day of exercise of the Stock Option, or in any combination thereof
approved by the Plan Administrator.
(c) The Plan Administrator may permit an Optionee to elect to pay the
Option Price upon the exercise of a Stock Option through a cashless
exercise procedure approved by the Plan Administrator by irrevocably
authorizing a broker to sell shares of Common Stock (or a sufficient
portion of the shares) acquired upon exercise of the Stock Option and remit
to the Company a sufficient portion of the sale proceeds to pay the entire
Option Price and any tax withholding resulting from such exercise.
Section 2.6. Issuance of Certificates. As soon as practicable after receipt
of payment, the Company shall deliver to the Optionee a certificate or
certificates for such shares of Common Stock unless (i) such certificate or
certificates have been previously delivered to a broker pursuant to Section
2.5(c) or (ii) the Award Agreement for such Stock Options allows the Plan
Administrator or the Optionee to defer delivery of such certificates. The
Optionee shall become a stockholder of the Company with respect to Common Stock
represented by share certificates so issued and as such shall be fully entitled
to receive dividends, to vote and to exercise all other rights of a stockholder
unless the Plan Administrator, in its discretion, imposes conditions,
restrictions or contingencies with respect to such shares in the applicable
Award Agreement.
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Section 2.7. Death, Retirement and Termination of Employment of Optionee.
Unless otherwise provided in an Award Agreement or otherwise agreed to by the
Plan Administrator:
(a) Upon the death of the Optionee, any rights to the extent
exercisable on the date of death may be exercised by the Optionee's estate,
or by a person who acquires the right to exercise such Stock Option by
bequest or inheritance or by reason of the death of the Optionee, provided
that such exercise occurs within both (i) the remaining Option Term of the
Stock Option and (ii) one year after the Optionee's death. The provisions
of this Section shall apply notwithstanding the fact that the Optionee's
employment may have terminated prior to death, but only to the extent of
any Stock Options exercisable on the date of death.
(b) Upon termination of the Optionee's employment by reason of
retirement or permanent disability (as each is determined by the Plan
Administrator), the Optionee may exercise any Stock Options, provided such
option exercise occurs within both (i) the remaining Option Term of the
Stock Option and (ii) six months (in the case of permanent disability) or
three months (in the case of retirement).
(c) Upon termination of the Optionee's employment by reason other
than death, retirement, disability or cause (as each is determined by the
Plan Administrator), the Optionee may exercise any Stock Options, provided
such option exercise occurs within both (i) the remaining Option Term of
the Stock Option and (ii) 30 days of the date of termination.
(d) Except as provided in Subsections (a), (b) and (c) of this
Section 2.7, all Stock Options shall terminate immediately upon the
termination of the Optionee's employment.
Section 2.8. Effect of Exercise. The exercise of any Stock Option shall
cancel that number of tandem SARs, if any, which is equal to the number of
shares of Common Stock purchased pursuant to said Stock Option unless otherwise
agreed by the Plan Administrator in an Award Agreement or otherwise.
Section 2.9. No Reduction in Option Price . The Option Price of Stock
Options issued under the Plan shall not be reduced following the Award of such
Stock Options. The Plan Administrator shall not authorize the Award of Stock
Options for outstanding Stock Options or outstanding Incentive Stock Options
which have a lower Option Price.
ARTICLE III. INCENTIVE STOCK OPTIONS
Section 3.1. Award of Incentive Stock Options. The Plan Administrator may,
from time to time and subject to the provisions of the Plan and such other terms
and conditions as the Plan Administrator may prescribe, grant to any officer or
key employee who is eligible to participate in the Plan one or more "incentive
stock options" (intended to qualify as such under the provisions of Section 422
of the Code ("Incentive Stock Options")) to purchase for cash or shares the
number of shares of Common Stock allotted by the Plan Administrator. No
Incentive Stock Options shall be granted under the Plan after the tenth
anniversary of the effective date of the Plan. The date an Incentive Stock
Option is granted shall mean the date selected by the Plan Administrator as of
which the Plan Administrator allots a specific number of shares to a Participant
pursuant to the Plan. Notwithstanding the foregoing, Incentive Stock Options
shall not be granted to any owner of 10% or more of the total combined voting
power of the Company and its Subsidiaries.
Section 3.2. Incentive Stock Option. The grant of an Incentive Stock Option
shall be evidenced by a written Award Agreement, executed by the Company and the
holder of an Incentive Stock Option (the "Optionee"), stating the number of
shares of Common Stock subject to the Incentive Stock Option evidenced thereby,
and in such form as the Plan Administrator may from time to time determine.
Section 3.3. Incentive Stock Option Price. The Option Price per share of
Common Stock deliverable upon the exercise of an Incentive Stock Option shall be
100% of the Fair Market Value of a share of Common Stock on the date the
Incentive Stock Option is granted.
Section 3.4. Term and Exercise. Each Incentive Stock Option shall not be
exercisable prior to six months from the date of its grant and unless a shorter
period is provided by the Plan Administrator or another Section of this Plan,
may be exercised during a period of ten years from the date of grant thereof
(the "Option Term") and may be subject to such vesting scheduling as the Plan
Administrator may provide
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in an Award Agreement. No Incentive Stock Option shall be exercisable after the
expiration of its Option Term.
Section 3.5. Maximum Amount of Incentive Stock Option Grant. The aggregate
Fair Market Value (determined on the date the Incentive Stock Option is granted)
of Common Stock with respect to which Incentive Stock Options first become
exercisable by an Optionee during any calendar year (under all plans of the
Optionee's employer corporations and their parent and subsidiary corporations)
shall not exceed $100,000.
Section 3.6. Death of Optionee. Unless otherwise provided in an Award
Agreement or otherwise agreed to by the Plan Administrator:
(a) Upon the death of the Optionee, any Incentive Stock Option
exercisable on the date of death may be exercised by the Optionee's estate
or by a person who acquires the right to exercise such Incentive Stock
Option by bequest or inheritance or by reason of the death of the Optionee,
provided that such exercise occurs within both (i) the remaining Option
Term of the Incentive Stock Option and (ii) one year after the Optionee's
death.
(b) The provisions of this Section shall apply notwithstanding the
fact that the Optionee's employment may have terminated prior to death, but
only to the extent of any Incentive Stock Options exercisable on the date
of death.
Section 3.7. Retirement or Disability. Unless otherwise provided in an
Award Agreement or otherwise agreed to by the Plan Administrator, upon the
termination of the Optionee's employment by reason of permanent disability or
retirement (as each is determined by the Plan Administrator), the Optionee may
exercise any Incentive Stock Options, provided such option exercise occurs
within both (i) the remaining Option Term of the Incentive Stock Option and (ii)
six months (in the case of permanent disability) or three months (in the case of
retirement). Notwithstanding the terms of an Award Agreement, the tax treatment
available pursuant to Section 422 of the Code upon the exercise of an Incentive
Stock Option shall not be available to an Optionee who exercises any Incentive
Stock Options more than (i) one year after the date of termination of employment
due to permanent disability or (ii) three months after the date of termination
of employment due to retirement.
Section 3.8. Termination for Other Reasons. Unless otherwise provided in an
Award Agreement or otherwise agreed to by the Plan Administrator, except as
provided in Sections 3.6 and 3.7, upon termination of the Optionee's employment
by reason other than death, retirement, disability or cause (as each is
determined by the Plan Administrator), the Optionee may exercise any Incentive
Stock Options, provided such option exercise occurs within both (i) the
remaining Option Term of the Incentive Stock Option and (ii) 30 days of the date
of termination.
Section 3.9. Termination for Cause. Unless otherwise provided in an Award
Agreement or otherwise agreed to by the Plan Administrator, except as provided
in Sections 3.6, 3.7 and 3.8, all Incentive Stock Options shall terminate
immediately upon the termination of the Optionee's employment.
Section 3.10. Applicability of Stock Options Sections. Sections 2.5,
Manner of Payment; 2.6, Issuance of Certificates; and 2.8, Effect of Exercise,
applicable to Stock Options, shall apply equally to Incentive Stock Options.
Said Sections are incorporated by reference in this Article III as though fully
set forth herein.
Section 3.11. Code Requirements. The terms of any Incentive Stock Option
granted under the Plan shall comply in all respects with the provisions of Code
Section 422. Anything in the Plan to the contrary notwithstanding, no term of
the Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be
exercised, so as to disqualify either the Plan or any Incentive Stock Option
under Code Section 422, unless the Participant has first requested the change
that will result in such disqualification. If Code Section 422 is amended to
change any requirements to qualify for treatment as Incentive Stock Options the
Board of Directors may amend the Plan to conform to any such change.
Section 3.12. No Reduction in Option Price. The Option Price of Incentive
Stock Options issued under the Plan shall not be reduced following the Award of
such Incentive Stock Options. The Plan Administrator shall not authorize the
Award of Incentive Stock Options for outstanding Stock Options or outstanding
Incentive Stock Options which have a lower Option Price.
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ARTICLE IV. STOCK APPRECIATION RIGHTS
Section 4.1. Award of Stock Appreciation Rights. The Plan Administrator
may from time to time, and subject to the provisions of the Plan and such other
terms and conditions as the Plan Administrator may prescribe, grant to any
person eligible to participate in the Plan one or more stock appreciation rights
("SAR") entitling the Participant, upon exercise, to receive, in cash or shares
of Common Stock, value equal to (or otherwise based on) the excess of: (i) the
Fair Market Value of a specified number of shares of Common Stock at the time of
exercise over (ii) an Exercise Price established by the Plan Administrator, or,
if granted in tandem with an Option, the Option Price with respect to shares
under the tandem Option. The date an SAR is granted shall mean the date selected
by the Plan Administrator as of which the Plan Administrator specifies the
number of shares upon which the SAR will be based.
Section 4.2. SAR Agreements. The grant of an SAR shall be evidenced by a
written Award Agreement, executed by the Company and the holder of the SAR ("SAR
Holder") stating the number of shares of Common Stock upon which the SAR is
based, and in such form as the Plan Administrator may from time to time
determine. SARs may be granted in tandem with all or any portion of a previously
or contemporaneously granted Option.
Section 4.3. SAR Exercise Price. The exercise price per share of Common
Stock ("Exercise Price") used to determine the value to be received upon the
exercise of an SAR shall be 100% of the Fair Market Value of a share of Common
Stock on the date the SAR is granted unless otherwise determined by the Plan
Administrator.
Section 4.4. Term and Exercise. An SAR that is not in tandem with an Option
shall not be exercisable prior to six months from the date of its grant, unless
a shorter period is provided by the Plan Administrator or by another Section of
this Plan, and may be subject to such vesting scheduling and term ("SAR Term")
as the Plan Administrator may provide in an Award Agreement. No SAR shall be
exercisable after the expiration of its SAR Term. An SAR granted in tandem with
an Option is exercisable at the time the tandem Option is exercisable, unless
the Plan Administrator provides for a longer period. A tandem SAR shall be
subject to the same Option Term as the tandem Option to which it relates, unless
the Plan Administrator specifies a different SAR Term in the applicable Award
Agreement. The exercise of an SAR granted in tandem with an Option will result
in the cancellation of an equal number of corresponding Options related to the
tandem SAR. The Plan Administrator may, in its discretion, prescribe additional
conditions to the exercise of any SAR.
Section 4.5. Exercise of SAR. Each Award Agreement providing for SARs shall
set forth procedures governing the exercise of the SAR granted thereunder.
Settlement of SARs may be made in shares of Common Stock (valued at their Fair
Market Value at the time of exercise), in cash or in a combination thereof, as
determined in the discretion of the Plan Administrator. As soon as practicable
after the exercise of an SAR for shares of Common Stock, the Company shall
deliver to the SAR Holder a certificate or certificates for such shares of
Common Stock unless the Award Agreement for such SARs allows the Plan
Administrator or the SAR Holder to defer delivery of such shares of Common
Stock. The SAR Holder shall become a stockholder of the Company with respect to
Common Stock represented by share certificates so issued and as such shall be
fully entitled to receive dividends, to vote and to exercise all other rights of
a stockholder, unless the Plan Administrator, in its discretion, imposes
conditions, restrictions or contingencies with respect to such shares in the
applicable Award Agreement.
ARTICLE V. BONUS STOCK AWARDS
Section 5.1. Award of Bonus Stock. The Plan Administrator may from time to
time, and subject to the provisions of this Plan and such other terms and
conditions as the Plan Administrator may prescribe, grant to any person eligible
to participate in the Plan shares of Common Stock ("Bonus Stock").
Section 5.2. Bonus Stock Agreements. The grant of a Bonus Stock shall be
evidenced by a written Award Agreement, executed by the Company and the
recipient of Bonus Stock, in such form as the Plan Administrator may from time
to time determine, providing for the terms of such grant, including any vesting
schedule, restrictions on the transfer of such Common Stock or other matters.
Section 5.3. Transfer Restriction. Any Award Agreement providing for the
issuance of Bonus Stock to any person who, at the time of grant, is a person
described in Section 16(a) under the Exchange Act shall provide that such Common
Stock cannot be resold for a period of six months following the grant of such
Bonus Stock.
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ARTICLE VI. RESTRICTED STOCK
Section 6.1. Award of Restricted Stock. The Plan Administrator may grant
shares of restricted stock, the vesting of which is subject to certain
conditions established by the Plan Administrator with some or all of those
conditions relating to events (such as performance or continued employment)
occurring after the date of grant ("Restricted Stock"). The date Restricted
Stock is granted shall mean the date selected by the Plan Administrator as of
which the Plan Administrator allots a specified number of shares to a
Participant pursuant to the Plan.
Section 6.2. Restricted Stock Agreements. The grant of Restricted Stock
shall be evidenced by a written Award Agreement, executed by the Company and the
holder of the Restricted Stock stating the number of shares of Common Stock that
are subject to the Restricted Stock Award and the conditions to vesting, and in
such form as the Plan Administrator may from time to time determine.
Section 6.3. Stockholder Rights. Unless otherwise provided by the Plan
Administrator, Restricted Stock may not be sold, assigned, transferred, pledged
or otherwise encumbered during the Restricted Period. Except for such
restrictions and any other restrictions imposed by the Plan Administrator,
holders of Restricted Stock shall have all of the rights of a stockholder,
including, but not limited to, the right to vote such shares and the right to
receive all dividends paid on such shares.
Section 6.4. Certificates. Unless otherwise provided by the Plan
Administrator, each certificate issued in respect of shares of Restricted Stock
granted under the Plan shall be registered in the name of the holder of such
Restricted Stock and shall be deposited with the Company with a stock power
endorsed in blank. Upon the vesting of Restricted Stock, such Restricted Stock
shall be transferred free of all restrictions to the Participant.
Section 6.5. Performance-Based Awards. The Plan Administrator may award
performance-based Restricted Stock that becomes vested (or for which vesting is
accelerated) upon the achievement of Performance Targets established pursuant to
the requirements of Section 8.4 by the Plan Administrator. The Plan
Administrator may specify the number of shares that will vest upon the
achievement of different levels of performance. Except as otherwise provided by
the Plan Administrator, achievement of maximum target levels during the
Performance Cycle shall result in the Participant's receipt of the full
performance-based Restricted Stock Award. For achievement of the minimum target,
but less than the maximum target, the Plan Administrator may establish a portion
of the Award that the Participant is entitled to receive. Any performance-based
Restricted Stock that is not earned by the end of a Performance Cycle shall be
forfeited unless the Plan Administrator provides otherwise in the applicable
Award Agreement.
Section 6.6. Termination of Employment. Unless the applicable Award
Agreement provides for vesting upon death, disability, retirement or other
termination of employment, upon any such termination of employment of a
Participant prior to vesting of Restricted Stock, all outstanding and unvested
Awards of Restricted Stock to such Participant shall be canceled, shall not vest
and shall be returned to the Company.
ARTICLE VII. RESTRICTED STOCK UNITS
Section 7.1. Award of Restricted Stock Units. The Plan Administrator may
grant rights to receive stock in the future, the vesting of which is subject to
certain conditions established by the Plan Administrator with some or all of
those conditions relating to events (such as performance or continued
employment) occurring after the date of grant ("Restricted Stock Units"). The
date a Restricted Stock Unit is granted shall mean the date selected by the Plan
Administrator as of which the Plan Administrator allots a specified number of
shares to a Participant pursuant to the Plan.
Section 7.2. Restricted Stock Unit Agreements. The grant of Restricted
Stock Units shall be evidenced by a written Award Agreement, executed by the
Company and the holder of the Restricted Stock Unit stating the number of shares
of Common Stock that are subject to the Restricted Stock Unit Award and the
conditions to vesting, and in such form as the Plan Administrator may from time
to time determine.
Section 7.3. Stockholder Rights. Except as otherwise provided in this
Section 7.3, prior to the vesting and settlement of Restricted Stock Units in
shares of Common Stock, holders of Restricted Stock Units shall not have any of
the rights of a stockholder. Unless the Plan Administrator provides otherwise,
holders of Restricted Stock Units shall have the right, subject to any
restrictions or vesting requirements imposed by the Plan Administrator, to
receive a payment from the Company in lieu of a dividend in an amount equal to
such dividends and at such times as dividends would otherwise be paid.
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Section 7.4. Certificates. As soon as practicable after the vesting of
Restricted Stock Units, the Company shall deliver to the Participant a
certificate or certificates for such shares of Common Stock unless the Award
Agreement for such Restricted Stock Units allows the Plan Administrator or the
Participant to defer delivery of such shares of Common Stock. The Participant
shall become a stockholder of the Company with respect to Common Stock
represented by share certificates so issued and as such shall be fully entitled
to receive dividends, to vote and to exercise all other rights of a stockholder
unless the Plan Administrator, in its discretion, imposes conditions,
restrictions or contingencies with respect to such shares in the applicable
Award Agreement.
Section 7.5. Performance-Based Awards. The Plan Administrator may award
performance-based Restricted Stock Units that becomes vested (or for which
vesting is accelerated) upon the achievement of Performance Targets established
pursuant to the requirements of Section 8.4 by the Plan Administrator. The Plan
Administrator may specify the number of shares that will vest upon the
achievement of different levels of performance. Except as otherwise provided by
the Plan Administrator, achievement of maximum target levels during the
Performance Cycle shall result in the Participant's receipt of the full
performance-based Restricted Stock Unit Award. For achievement of the minimum
target, but less than the maximum target, the Plan Administrator may establish a
portion of the Award that the Participant is entitled to receive. Any
performance-based Restricted Stock Unit that is not earned by the end of a
Performance Cycle shall be forfeited unless the Plan Administrator provides
otherwise in the applicable Award Agreement.
Section 7.6. Termination of Employment. Unless the applicable Award
Agreement provides for vesting upon death, disability, retirement or other
termination of employment, upon any such termination of employment of a
Participant prior to vesting of Restricted Stock, all outstanding and unvested
Awards of Restricted Stock to such Participant shall be canceled, shall not vest
and shall be returned to the Company.
ARTICLE VIII. PERFORMANCE SHARE AWARDS
Section 8.1. Awards Granted by Plan Administrator. Coincident with or
following designation for participation in the Plan, a person eligible to
participate in the Plan may be granted Performance Shares. Certificates
representing Performance Shares shall be issued to the Participant effective as
of the date of the Award. Holders of Performance Shares shall have all of the
voting, dividend and other rights of stockholders of the Company, subject to the
terms of any Award Agreement.
Section 8.2. Amount of Award. The Plan Administrator shall establish a
maximum amount of a Participant's Award, which amount shall be denominated in
shares of Common Stock.
Section 8.3. Communication of Award. Written notice of the maximum amount
of a Participant's Award and the Performance Cycle determined by the Plan
Administrator, if any, shall be given to a Participant as soon as practicable
after approval of the Award by the Plan Administrator. The grant of Performance
Shares shall be evidenced by a written Award Agreement, executed by the Company
and the recipient of Performance Shares, in such form as the Plan Administrator
may from time to time determine, providing for the terms of such grant.
Section 8.4. Amount of Award Payable. Performance Shares may be granted
based upon past performance or future performance. In addition to any other
restrictions the Plan Administrator may place on Performance Shares, the Plan
Administrator may, in its discretion, provide that Performance Shares shall vest
upon the satisfaction of Performance Targets to be achieved during an applicable
Performance Cycle. Failure to satisfy the Performance Targets may result, in the
Plan Administrator's discretion as set forth in an Award Agreement, in the
forfeiture of the Performance Shares by the Participant and the return of such
shares to the Company, or have any other consequence as determined by the Plan
Administrator. Multiple Performance Targets may be used and the components of
multiple Performance Targets may be given the same or different weight in
determining the amount of an Award earned, and may relate to absolute
performance or relative performance measured against other groups, units,
individuals or entities. The Plan Administrator may also establish that none, a
portion or all of a Participant's Award will vest (subject to Section 8.6) for
performance which falls below the Performance Target applicable to such Award.
Certificates representing Performance Shares shall bear a legend restricting
their transfer and requiring the forfeiture of the shares to the Company if any
Performance Targets or other conditions to vesting are not met. The Plan
Administrator may also require a Participant to deliver certificates
representing unvested Performance Shares to the Company in escrow until the
Performance Shares vest.
Section 8.5. Adjustments. At any time prior to vesting of a Performance
Share, the Plan Administrator may adjust previously established Performance
Targets or other terms and conditions to
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reflect events such as changes in laws, regulations, or accounting practice, or
mergers, acquisitions, divestitures or any other event determined by the Plan
Administrator.
Section 8.6. Payments of Awards. Following the conclusion of each
Performance Cycle, the Plan Administrator shall determine the extent to which
Performance Targets have been attained, and the satisfaction of any other terms
and conditions with respect to the vesting of an Award relating to such
Performance Cycle. Subject to the provisions of Section 8.3, to the extent the
Plan Administrator determines Performance Shares have vested, the Company shall
issue to the Participant certificates representing vested shares free of any
legend regarding Performance Targets or forfeiture in exchange for such
Participant's legended certificates.
Section 8.7. Termination of Employment. Unless the Award Agreement provides
for vesting upon death, disability, retirement or other termination of
employment, upon any such termination of employment of a Participant prior to
vesting of Performance Shares, all outstanding and unvested Awards of
Performance Shares to such Participant shall be canceled, shall not vest and
shall be returned to the Company.
Section 8.8. Transfer Restriction. Unless otherwise agreed to by the Plan
Administrator in an Award Agreement, any Award Agreement providing for the
issuance of Performance Shares to any person who, at the time of grant, is
subject to the restrictions of Section 16(b) of the Exchange Act, shall provide
that such Common Stock cannot be resold for a period of six months following the
grant of such Performance Shares.
ARTICLE IX. PERFORMANCE UNITS
Section 9.1. Awards Granted by Plan Administrator. Coincident with or
following designation for participation in the Plan, a person eligible to
participate in the Plan may be granted the right to receive value for
performance units, denominated in dollars or shares of Common Stock at the end
of a Performance Cycle ("Performance Units"). The date a Performance Unit is
granted shall mean the date selected by the Plan Administrator as of which the
Plan Administrator allots a specified dollar amount or number of shares to a
Participant pursuant to the Plan.
Section 9.2. Amount of Award. The Plan Administrator shall establish a
maximum amount of a Participant's Award, which amount shall be denominated in
dollars or shares of Common Stock. Performance Units shall be paid in shares of
Common Stock unless the Plan Administrator provides in the Award Agreement for
payment in cash or a combination of shares of Common Stock and cash. Performance
Units denominated in dollars shall be paid the number of shares of Common Stock
determined by dividing the dollar denominated value of a Performance Unit by the
Fair Market Value of a share of Common Stock on the effective date of the grant.
If a cash payment is made for a Performance Unit denominated in shares of Common
Stock, the cash payment per share shall be equal to the Fair Market Value of a
share of Common Stock on the date of vesting.
Section 9.3. Communication of Award. Written notice of the maximum amount
of a Participant's Award and the Performance Cycle determined by the Plan
Administrator, if any, shall be given to a Participant as soon as practicable
after approval of the Award by the Plan Administrator. The grant of Performance
Units shall be evidenced by a written Award Agreement, executed by the Company
and the recipient of Performance Units, in such form as the Plan Administrator
may from time to time determine, providing for the terms of such grant.
Section 9.4. Amount of Award Payable. Performance Units may be granted
based upon past performance or future performance. In addition to any other
restrictions the Plan Administrator may place on Performance Units, the Plan
Administrator may, in its discretion, provide that Performance Units shall vest
upon the satisfaction of Performance Targets to be achieved during an applicable
Performance Cycle. Failure to satisfy the Performance Targets may result, in the
Plan Administrator's discretion as set forth in an Award Agreement, in the
forfeiture of the Performance Units by the Participant, or have any other
consequence as determined by the Plan Administrator. Multiple Performance
Targets may be used and the components of multiple Performance Targets may be
given the same or different weight in determining the amount of an Award earned,
and may relate to absolute performance or relative performance measured against
other groups, units, individuals or entities. The Plan Administrator may also
establish that none, a portion or all of a Participant's Award will vest
(subject to Section 9.6) for performance which falls below the Performance
Target applicable to such Award.
Section 9.5. Adjustments. At any time prior to vesting of a Performance
Unit, the Plan Administrator may adjust previously established Performance
Targets or other terms and conditions to
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reflect events such as changes in laws, regulations, or accounting practice, or
mergers, acquisitions, divestitures or any other event determined by the Plan
Administrator.
Section 9.6. Payments of Awards. Following the conclusion of each
Performance Cycle, the Plan Administrator shall determine the extent to which
performance targets have been attained, and the satisfaction of any other terms
and conditions with respect to the vesting of an Award relating to such
Performance Cycle. Subject to the provisions of Section 9.3, to the extent the
Plan Administrator determines Performance Units have vested, the Company shall
issue to the Participant certificates representing vested shares, cash payment,
or a combination of both as provided in the applicable Award Agreement unless
the Award Agreement for such Performance Units allows the Plan Administrator or
the Participant to defer delivery of such Common Stock or cash payment.
Section 9.7. Termination of Employment. Unless the Award Agreement provides
for vesting upon death, disability, retirement or other termination of
employment, upon any such termination of employment of a Participant prior to
vesting of Performance Unit, all outstanding and unvested Awards of Performance
Shares to such Participant shall be canceled and shall not vest.
ARTICLE X. MISCELLANEOUS
Section 10.1. General Restriction. Each Award under the Plan shall be
subject to the requirement that, if at any time the Plan Administrator shall
determine that (i) the listing, registration or qualification of the shares of
Common Stock which is the subject of such Award is necessary under the rules and
regulations of any securities exchange or under any state or federal law, (ii)
the consent or approval of any government regulatory body, or (iii) an agreement
by the grantee of an Award with respect to the disposition of shares of Common
Stock is necessary or desirable as a condition of, or in connection with, the
granting of such Award or the issue or purchase of shares of Common Stock
thereunder, such Award may not be consummated in whole or in part unless such
listing, registration, qualification, consent, approval or agreement shall have
been effected or obtained free of any conditions not acceptable to the Plan
Administrator.
Section 10.2. Non-Assignability. No Award under the Plan shall be
assignable or transferable by the recipient thereof, except by will or by the
laws of descent and distribution. During the life of the recipient, such Award
shall be exercisable only by such person or by such person's guardian or legal
representative.
Section 10.3. Withholding Taxes. Whenever the Company proposes or is
required to issue or transfer shares of Common Stock under the Plan, the Company
shall have the right to require the grantee to remit to the Company an amount
sufficient to satisfy any federal, state and/or local withholding tax
requirements prior to the delivery of any certificate or certificates for such
shares. Alternatively, the Company may issue, transfer or vest only such number
of shares of the Company net of the number of shares sufficient to satisfy the
withholding tax requirements. For withholding tax purposes, the shares of Common
Stock shall be valued on the date the withholding obligation is incurred. Unless
the Plan Administrator provides otherwise in the applicable Award Agreement,
Participants may elect to satisfy tax withholding obligations through the
surrender of shares of Common Stock which the Participant already owns or
through the surrender of shares of Common Stock to which the Participant is
otherwise entitled under the Plan.
Section 10.4. Right to Terminate Employment. Nothing in the Plan or in any
agreement entered into pursuant to the Plan shall confer upon any Participant
the right to continue in the employment of the Company or affect any right which
the Company may have to terminate the employment of such Participant.
Section 10.5. Non-Uniform Determinations. The Plan Administrator's
determinations under the Plan (including without limitation determinations of
the persons to receive Awards, the form, amount and timing of such Awards, the
terms and provisions of such Awards and the agreements evidencing the same) need
not be uniform and may be made by it selectively among persons who receive, or
are eligible to receive, Awards under the Plan, whether or not such persons are
similarly situated.
Section 10.6. Rights as a Stockholder. Unless otherwise provided in the
Plan, the recipient of any Award under the Plan shall have no rights as a
stockholder with respect thereto unless and until certificates for shares of
Common Stock are issued to him.
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Section 10.7. Definitions. In this Plan the following definitions shall
apply:
(a) "Affiliate" means any person or entity which directly, or
indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with Nuevo Energy Company.
(b) "Award" shall mean a grant of Stock Options, Incentive Stock
Options, Bonus Stock, SARs, Restricted Stock, Restricted Stock Units,
Performance Shares or Performance Units under the Plan.
(c) "Code" means the Internal Revenue Code of 1986, as amended. A
reference to any provision of the Code shall include any successor
provision of the Code.
(d) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(e) "Fair Market Value" as of any date and in respect of any share of
Common Stock means the closing price on such date or on the next business
day, if such date is not a business day, of a share of Common Stock
reflected in the consolidated trading tables of The Wall Street Journal
(presently the NYSE - Composite Transactions) or any other publication
selected by the Plan Administrator, provided that, if shares of Common
Stock shall not have been traded on the New York Stock Exchange for more
than 10 days immediately preceding such date or if deemed appropriate by
the Plan Administrator for any other reason, the Fair Market Value of
shares of Common Stock shall be as determined by the Plan Administrator in
such other manner as it may deem appropriate. In no event shall the Fair
Market Value of any share of Common Stock be less than its par value.
(e) "Non-Employee Director" shall mean a director who (i) is not an
officer of the Company or a parent or Subsidiary of the Company, or
otherwise employed by the Company or parent or Subsidiary of the Company;
(ii) does not receive compensation, either directly or indirectly, from the
Company or a parent or Subsidiary of the Company, for services rendered as
a consultant or in any capacity other than as a director, except for an
amount not exceeding $60,000; (iii) does not possess an interest in any
transaction for which disclosure would be required under Item 404(a) of
Regulation S-K of the Securities Act of 1933, as amended ("Securities
Act"); or (iv) is not engaged in a business relationship for which
disclosure would be required pursuant to Item 404(b) of Regulation S-K of
the Securities Act.
(f) "Option" means a Stock Option or Incentive Stock Option.
(g) "Option Price" means the purchase price per share of Common Stock
deliverable upon the exercise of a Stock Option or Incentive Stock Option.
(h) "Outside Director" means a director of the Company who is an
"outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.
(i) "Participant" means a director, executive officer, other key
employee or consultant of the company or any Subsidiary who holds an
outstanding Award granted under the Plan
(j) "Performance Cycle" means the period of time, if any, as
specified by the Plan Administrator over which Performance Shares are to be
vested.
(k) "Performance Target" means those targets established by the Plan
Administrator that relate to corporate, group, unit or individual
performance and are established in terms of market price of common stock,
cash flow or cash flow per share, reserve value or reserve value per share,
net asset or net asset value per share, earnings, or, to the extent that
the Award is not intended to qualify as performance-based compensation (as
that term is used for purposes of Section 162(m) of the Code), such other
measures or standards determined by the Plan Administrator.
(l) "Restricted Period" means the period of time for which Restricted
Stock is subject to forfeiture pursuant to the Plan.
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(m) "Subsidiary" means any corporation or other entity of which at
least 50% of the voting securities entitled to vote generally in an
election of directors are owned by the Company directly or through one or
more other corporations or other entities, each of which is also a
Subsidiary. With respect to non-corporate entities, Subsidiary shall mean
an entity managed or controlled by the Company or any Subsidiary and with
respect to which the Company or any Subsidiary is allocated more than half
of the profits and losses thereof.
Section 10.8. Leaves of Absence. The Plan Administrator shall be entitled
to make such rules, regulations and determinations as it deems appropriate under
the Plan in respect of any leave of absence taken by the recipient of any Award.
Without limiting the generality of the foregoing, the Plan Administrator shall
be entitled to determine (i) whether or not any such leave of absence shall
constitute a termination of employment within the meaning of the Plan and (ii)
the impact, if any, of any such leave of absence on Awards under the Plan
theretofore made to any recipient who takes such leave of absence.
Section 10.9. Newly Eligible Employees. The Plan Administrator shall be
entitled to make such rules, regulations, determinations and Awards as it deems
appropriate in respect of any employee who becomes eligible to participate in
the Plan or any portion thereof after the commencement of an Award or incentive
period .
Section 10.10. Adjustments. In the event of any change in the outstanding
Common Stock by reason of a stock dividend or distribution, recapitalization,
merger, consolidation, split-up, combination, exchange of shares or the like,
the Plan Administrator may appropriately adjust the number of shares of Common
Stock which may be issued under the Plan, the number of shares of Common Stock
subject to Options, Bonus Stock, SARs, Restricted Stock, Restricted Stock Units,
Performance Shares or Performance Units theretofore granted under the Plan, and
any and all other matters deemed appropriate by the Plan Administrator.
Section 10.11. Changes in the Company's Capital Structure.
(a) The existence of outstanding Options, Bonus Stock, SARs,
Restricted Stock, Restricted Stock Units, Performance Shares or Performance
Units shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all
or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
(b) If, while there are outstanding Options, the Company shall effect
a subdivision or consolidation of shares or other increase or reduction in
the number of shares of the Common Stock outstanding without receiving
compensation therefor in money, services or property, then, subject to the
provisions, if any, in the Award Agreement (a) in the event of an increase
in the number of such shares outstanding, the number of shares of Common
Stock then subject to Options hereunder shall be proportionately increased;
and (b) in the event of a decrease in the number of such shares outstanding
the number of shares then available for Option hereunder shall be
proportionately decreased.
(c) After a merger of one or more corporations into the Company, or
after a consolidation of the Company and one or more corporations in which
the Company shall be the surviving corporation, (i) each holder of an
outstanding Option shall, at no additional cost, be entitled upon exercise
of such Option to receive (subject to any required action by stockholders)
in lieu of the number of shares as to which such Option shall then be so
exercisable, the number and class of shares of stock, other securities or
consideration to which such holder would have been entitled to receive
pursuant to the terms of the agreement of merger or consolidation if,
immediately prior to such merger or consolidation, such holder had been the
holder of record of a number of shares of the Company equal to the number
of shares as to which such Option had been exercisable and (ii) unless
otherwise provided by the Plan Administrator, the number of shares of
Common Stock, other securities or consideration to be received with respect
to unvested Bonus Stock, SARs, Restricted Stock, Restricted Stock Units,
Performance Shares and Performance Units shall continue to be subject to
the Award Agreement, including vesting provisions hereof.
(d) If the Company is about to be merged into or consolidated with
another corporation or other entity under circumstances where the Company
is not the surviving corporation, or if the Company is about to sell or
otherwise dispose of substantially all of its assets to another corporation
or other entity while unvested Bonus Stock, SARs, Restricted Stock,
Restricted Stock Units, Performance Shares or
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Performance Units or unexercised Options remain outstanding, then the Plan
Administrator may direct that any of the following shall occur:
(i) If the successor entity is willing to assume the obligation
to deliver shares of stock or other securities after the effective
date of the merger, consolidation or sale of assets, as the case may
be, each holder of an outstanding Option shall be entitled to receive,
upon the exercise of such Option and payment of the Option Price, in
lieu of shares of Common Stock, such shares of stock or other
securities as the holder of such Option would have been entitled to
receive had such Option been exercised immediately prior to the
consummation of such merger, consolidation or sale, and the terms of
such Option and any tandem SAR associated with such Option shall apply
as nearly as practicable to the shares of stock or other securities
purchasable upon exercise of the Option following such merger,
consolidation or sale of assets;
(ii) The Plan Administrator may waive any limitations set forth
in or imposed pursuant to this Plan or any Award Agreement with
respect to such Option and any tandem SAR, Bonus Stock, SAR,
Restricted Stock, Restricted Stock Unit, Performance Share or
Performance Unit such that (A) such Option and tandem SAR shall become
exercisable prior to the record or effective date of such merger,
consolidation or sale of assets or (B) the vesting of such Bonus
Stock, SAR, Restricted Stock, Restricted Stock Unit, Performance Share
or Performance Unit shall occur upon such merger, consolidation or
sale of assets; and/or
(iii) The Plan Administrator may cancel all outstanding Options
and tandem SARs as of the effective date of any such merger,
consolidation or sale of assets provided that prior notice of such
cancellation shall be given to each holder of an Option at least 30
days prior to the effective date of such merger, consolidation or sale
of assets, and each holder of an Option shall have the right to
exercise such Option or any tandem SARs in full during a period of not
less than 30 days prior to the effective date of such merger,
consolidation or sale of assets.
(e) Except as herein provided, the issuance by the Company of Common
Stock or any other shares of capital stock or securities convertible into shares
of capital stock, for cash, property, labor done or other consideration, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock then subject to outstanding
Options.
Section 10.12. Amendment of the Plan.
(a) Subject to Section 3.11, Section 10.13 and subsection (b) of this
Section 10.12, the Board of Directors may, without further approval by the
stockholders and without receiving further consideration from the Participants,
amend this Plan or condition or modify Awards under this Plan, including
increases to the number of shares which may be covered by Awards under this
Plan.
(b) The following amendments shall require the approval of holders of a
majority of the shares of common stock present and voting at a meeting of
stockholders properly called at which a quorum is present:
(i) Any increase in the number of shares of Common Stock which may be
issued under the Plan as set forth in Section 1.5(a) in excess of 100,000
shares;
(ii) Any amendment, supplement or other change to an outstanding Award
Agreement which provides a material increase in benefits to the Participant
unless such amendment, supplement or change is made in connection with the
termination of employment of a Participant or the aggregate number of
shares subject to the Awards which are so amended over the life of the Plan
does not exceed 100,000 shares; provided, however, without stockholder
approval as contemplated by this Section, no amendment shall be made to
Section 2.9 and 3.12 providing for a decrease in the Option Price of any
outstanding Stock Option;
(iii) Any amendment, supplement or change which extends the class of
persons entitled to receive Awards under the Plan, other than the extension
of Awards covering up to an aggregate of 100,000 shares over the life of
the plan;
(iv) Any amendment, supplement or other change to Section 10.14 or
10.18; and
(v) Any amendment to this Section.
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Section 10.13. No Loss of Rights of Grantee of an Award. Nothing in this
Plan shall give the Plan Administrator or any other person the right, power or
authority to change, amend, alter or repeal the terms of any Award granted under
this Plan, except as otherwise expressly set forth in the grant of such Award,
without the prior written consent of the grantee of such Award.
Section 10.14. Dividends and Dividend Equivalents. An Award Agreement for
any Award other than an Option or SAR Award may provide the Participant with the
right to receive dividend payments or dividend equivalent payments with respect
to Common Stock subject to the Award Agreement (both before and after the Common
Stock subject to the Award Agreement is earned, vested, or acquired), which
payments may be either made currently or credited to an account for the
Participant, and may be settled in cash or Common Stock as determined by the
Plan Administrator. Any such settlements, and any such crediting of dividends or
dividend equivalents or reinvestment in shares of Common Stock, may be subject
to such conditions, restrictions and contingencies as the Plan Administrator
shall establish, including the reinvestment of such credited amounts in Common
Stock equivalents. An Award Agreement shall not provide such rights with respect
to Option or SAR Awards.
Section 10.15. Form and Time of Elections. Unless otherwise specified
herein, each election required or permitted to be made by any Participant or
other person entitled to benefits under the Plan, and any permitted
modification, or revocation thereof, shall be in writing filed with the Plan
Administrator at such times, in such form, and subject to such restrictions and
limitations, not inconsistent with the terms of the Plan, as the Plan
Administrator shall require.
Section 10.16. Performance Based Compensation. The Plan Administrator
shall designate all Awards intended to qualify as performance based compensation
under Section 162(m) of the Code and shall not be entitled to exercise any
discretion otherwise authorized under this Plan with respect to Awards
designated as performance based compensation if the ability to exercise such
discretion or the exercise of such discretion itself would cause the
compensation attributable to such Awards to fail to qualify as performance based
compensation.
Section 10.17. Deferral. The Plan Administrator may provide in any Award
Agreement that the Plan Administrator or the Participant may, upon the vesting
of any Award under this Plan, defer the receipt of any shares of Common Stock or
cash to be paid to the Participants as a result of the vesting of an Award under
this Plan.
Section 10.18. Vesting and Award Criteria of Performance Shares.
Notwithstanding the provisions of Articles V, VI, VII and VIII, the Plan
Administrator shall not make any Award under such Articles which vests in less
than one year. Any Award under such Articles shall also be made by the Plan
Administrator following a determination that such Award was in lieu of other
compensation which would have been paid to such employee.
Section 10.19. No Waiver. The Plan Administrator shall not waive any
provision of an Award which provides for vesting, performance criteria or other
material conditions to receipt or exercise of the Award, except for amendments
which are specifically permitted by Section 10.12(b).
The foregoing is a true and correct copy of the Nuevo Energy Company 1999
Stock Incentive Plan as approved by the Board of Directors on March 30, 1999 and
the stockholders the annual meeting on May 12, 1999.
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